District II
December 27, 2013
To:
Hon. James K. Muehlbauer
Circuit Court Judge
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Theresa Russell
Clerk of Circuit Court
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Mark Bensen
District Attorney
Washington County
P.O. Box 1986
West Bend, WI 53095-7986
Basil M. Loeb
Schmidlkofer, Toth & Loeb, LLC
1011 N. Mayfair Rd., Ste. 307
Wauwatosa, WI 53226-1403
Jacob J. Wittwer
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
You are hereby notified that the Court has entered the following opinion and order:
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2013AP1034-CR 2013AP1035-CR |
State of Wisconsin v. Cory D. Brotherton (L.C. # 2011CF425) State of Wisconsin v. Cory D. Brotherton (L.C. # 2012CF7) State of Wisconsin v. Cory D. Brotherton (L.C. # 2012CF9) |
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Before Neubauer, P.J., Reilly and Gundrum, JJ.
In these consolidated appeals,
Cory D. Brotherton appeals from judgments of conviction and an order denying
his motion to modify sentence. Based on our review of the
briefs and record, we conclude at conference that this case is appropriate for
summary disposition. See Wis.
Stat. Rule 809.21 (2011-12).[1] We affirm the judgments and order of the
circuit court.
In February 2012, Brotherton was convicted following
pleas of no contest to burglary as a party to a crime, theft as a party to a
crime, and possession of narcotics. The
circuit court sentenced Brotherton to an aggregate sentence of six years of
initial confinement and four years of extended supervision.
In March 2013, Brotherton filed a motion to modify his
sentence on grounds that new factors existed and that he was sentenced on
inaccurate information. The circuit court
denied the motion. This appeal follows.
On appeal, Brotherton first contends that he is
entitled to sentence modification on the basis of new factors. Specifically, he maintains that delays in the
availability of alcohol and other drug abuse (AODA) treatment programs and the
Earned Release Program constitute new factors.
A circuit court may modify a defendant’s sentence upon
a showing of a new factor. See State v. Harbor, 2011 WI 28, ¶35,
333 Wis. 2d 53, 797 N.W.2d 828. The
analysis involves a two-step process.
First, the defendant must demonstrate by clear and convincing evidence
that a new factor exists. Id.,
¶36. Second, the defendant must show
that the new factor justifies sentence modification. Id., ¶¶37-38. A new factor is “‘a fact or set of facts
highly relevant to the imposition of sentence, but not known to the trial judge
at the time of original sentencing, either because it was not then in existence
or because … it was unknowingly overlooked by all of the parties.’” Id., ¶40 (quoting Rosado
v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975)). Whether a fact or set of facts constitutes a
new factor is a question of law that this court decides independently. See Harbor, 333 Wis. 2d 53, ¶33. If the fact or set of facts do not constitute
a new factor as a matter of law, we need go no further in our analysis. Id., ¶38.
Upon review of the record, we conclude that delays in
the availability of AODA treatment programs and the Earned Release Program do
not constitute new factors. At
sentencing, the circuit court’s overriding concerns were the seriousness of Brotherton’s
offenses and the need to protect the public. The only treatment program the court discussed
and authorized was the Earned Release Program, and the court specifically
conditioned that authorization upon Brotherton first serving “at least” two
years of his initial confinement so as to avoid his premature release. After that two-year period had run, the court
recognized that it would be up to the department of corrections to decide when,
if at all, Brotherton could participate in the program.[2] In light of the foregoing, Brotherton cannot
demonstrate that delays in the availability of AODA treatment programs and the
Earned Release Program are highly relevant to the imposition of his sentence or
a fact not known by the court.
In a related argument, Brotherton next contends that
he is entitled to sentence modification because he was sentenced on the basis
of inaccurate information. He appears to
assert that the “inaccurate information” was the circuit court’s alleged belief
that he would be immediately placed in the Earned Release Program unless the
court established a waiting period for eligibility and that he would receive
AODA counseling during his initial confinement.
A defendant has a “due process right to be sentenced
upon accurate information.” State
v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. When a defendant seeks resentencing, the
defendant must establish by clear and convincing evidence both that the
information at issue is inaccurate and that the sentencing court actually
relied upon it. State v. Payette, 2008 WI
App 106, ¶46, 313 Wis. 2d 39, 756 N.W.2d 423. We independently review a defendant’s due
process challenge to the sentence. See Tiepelman, 291 Wis. 2d 179, ¶9.
Again, reviewing the record, we conclude that the circuit
court did not rely upon inaccurate information in sentencing Brotherton. As noted above, the court ordered a delay of
“at least” two years to participate in the Earned Release Program and recognized
that the department of corrections would ultimately determine when, if at all, Brotherton
could participate in the program.
Moreover, the court did not order that other AODA treatment programs be
made available to Brotherton immediately upon his initial confinement. As a result, Brotherton has failed to establish
that he was sentenced on the basis of inaccurate information.
Upon the foregoing reasons,
IT IS ORDERED that the judgments and order of the
circuit court are summarily affirmed, pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals